[00:00:05] Speaker 03: Our next case is active network LLC versus United States. [00:01:10] Speaker 03: See, Councilor Marconi? [00:01:35] Speaker 03: Okay, you may begin, but I do want to [00:01:39] Speaker 03: Question there's a couple of things I need to address first of all your council more coding is that correct mark on and you're reserving seven minutes of your time for rebuttal and Councillor Fennan You're going to speak for ten minutes and Councillor Coley Collie It's all right. [00:02:04] Speaker 03: You're you're you have five minutes did I get the time correct? [00:02:09] Speaker 03: So let's address the issue of the confidentiality material in the record. [00:02:16] Speaker 03: The record is heavily marked. [00:02:18] Speaker 03: The briefs have marking in them. [00:02:24] Speaker 03: Are we free to discuss those issues that are marked in yellow in the briefs? [00:02:33] Speaker 03: I'm asking either of you. [00:02:34] Speaker 03: I need a response. [00:02:36] Speaker 00: From the government's perspective, the parties negotiated what would be public and not. [00:02:40] Speaker 00: So the yellow in the briefs, from the party's position, is still sealed. [00:02:45] Speaker 00: We had prepared to come to an open hearing today, at least for government's part. [00:02:49] Speaker 00: And to the extent something under seal came up, it was a good point to add to the page number when the answer was, rather than saying open court. [00:02:58] Speaker 03: But we're accountable to whatever works for them. [00:03:02] Speaker 03: Are you OK with that? [00:03:04] Speaker 04: Yes, Your Honor. [00:03:05] Speaker 04: I mean, I would say that the parties went back and forth quite extensively to try to come up with something that we thought would be workable and allow for fear or argument, but still protect information that people don't want to provide to them. [00:03:28] Speaker 04: OK, let's go forward. [00:03:30] Speaker 03: Sir, you have to step up here. [00:03:39] Speaker 04: This case will be slightly less technical than the one that the court just heard. [00:03:44] Speaker 01: In a different form of technical. [00:03:46] Speaker 04: But it does involve the award of a contract that people across the United States and really from all over the world will use to buy reservations for visiting national parks, US national forests, and other federal facilities for recreation purposes. [00:04:07] Speaker 04: There isn't really any question here that the procurement process suffered from flaws. [00:04:13] Speaker 03: I understand that there were four sections involved in this particular proposal or the solicitation. [00:04:21] Speaker 03: And you're challenging only one of those sections. [00:04:25] Speaker 04: Is that correct? [00:04:28] Speaker 04: I wouldn't say that we're just challenging one section of the solicitation. [00:04:32] Speaker 04: I wouldn't say we're challenging the solicitation at all. [00:04:34] Speaker 04: What we're challenging is the evaluation under the solicitation. [00:04:37] Speaker 03: Well, OK, there was four. [00:04:40] Speaker 03: The part of the evaluation involved evaluation of four different parts. [00:04:46] Speaker 03: And you're challenging only one of those parts. [00:04:48] Speaker 04: We're challenging the technical evaluation as well as the conductive discussions. [00:04:54] Speaker 03: OK, so you're challenging the technical. [00:04:56] Speaker 03: So that means that the other three sections, the company that got the award on those three sections, [00:05:08] Speaker 03: Even if we were to find in your favor, what do you win? [00:05:14] Speaker 03: I mean, your opponent, your competitor in this case, prevailed in the other three sections. [00:05:21] Speaker 03: You're only challenging one of those sections. [00:05:24] Speaker 03: But even if we were to find that, you're correct. [00:05:28] Speaker 03: What does that do to the other three sections? [00:05:30] Speaker 03: Isn't the outcome the same? [00:05:32] Speaker 04: Well, it's not the type of evaluation where you take four separate sections [00:05:38] Speaker 04: You get one point for winning each of them, and you add it up at the end, and you say three to one, you win. [00:05:43] Speaker 04: This is the best value procurement where the agency is going to take a look at your proposal in each of the areas. [00:05:53] Speaker 04: And technical was obviously a critical aspect of that. [00:05:56] Speaker 04: They're going to evaluate the merits of that. [00:05:58] Speaker 04: They'll look at your pricing. [00:06:00] Speaker 04: They'll consider that. [00:06:01] Speaker 04: And they'll look at the other areas as well. [00:06:04] Speaker 04: But at the end of the day, [00:06:05] Speaker 03: The agency has to... So let's say the agency does that. [00:06:08] Speaker 03: We send it back and the agency does that and makes a re-evaluation on the technical aspect. [00:06:14] Speaker 03: And the other three sections, their evaluation of their decision remains the same. [00:06:20] Speaker 03: What does that... Do you win? [00:06:21] Speaker 04: If there's a material change in the technical evaluation, no evaluation, yes, we absolutely could win. [00:06:29] Speaker 03: You're not challenging the format of the technical. [00:06:33] Speaker 03: evaluation. [00:06:34] Speaker 03: You're challenging the outcome, the decision with respect to the technical part of the... Correct? [00:06:41] Speaker 04: What we're challenging is we're challenging specific aspects of the evaluation that we think demonstrate the evaluation itself was arbitrary and irrational and unequal in a number of different ways. [00:06:58] Speaker 04: Our view is that if we are successful on our challenge, [00:07:02] Speaker 04: The more likely scenario is that the agency would take this back and reopen discussions, and the parties would have a chance to address the issues that we've raised where we think there's some evaluation. [00:07:17] Speaker 04: And essentially, you'd have a new award decision. [00:07:22] Speaker 04: I mean, this case has already been back once. [00:07:25] Speaker 04: The Court of Federal Claims sent the case back to the agency [00:07:29] Speaker 04: re-evaluation once already with respect to the price evaluation. [00:07:33] Speaker 04: It found that that was not sufficient, sent it back. [00:07:37] Speaker 04: It also found that Active had raised legitimate concerns about aspects of the technical evaluation. [00:07:46] Speaker 04: So even the Court of Federal Claims was not saying this was a perfect evaluation. [00:07:51] Speaker 04: What this appeal about is we're attempting to point out some additional areas of flaws. [00:07:58] Speaker 04: that the Court of Federal Claims overlooked. [00:08:03] Speaker 04: One of the significant ones is in the area of discussions. [00:08:06] Speaker 04: The Federal Acquisition Regulation 15306 D3, and that's about as technical as I'll get in my argument today, requires the agency to do three things when it conducts discussions. [00:08:20] Speaker 04: They need to indicate or discuss with each offeror their deficiencies, which is clear, areas of noncompliance with some requirement, [00:08:27] Speaker 04: significant weaknesses, which are meaningful problems with the proposal. [00:08:33] Speaker 04: And third, they need to address adverse past performance information, which the offer has not yet had an opportunity to respond to. [00:08:41] Speaker 04: They can do more than that, but they can't do any less. [00:08:45] Speaker 04: The Court of Federal Claims found it was undisputed that ACTIV's proposal had a deficiency right from the start because it failed to commit to meeting the system uptime requirements. [00:08:56] Speaker 04: The solicitation had a specified time that the system had to be up. [00:09:02] Speaker 04: It was 99.9886, very demanding. [00:09:07] Speaker 04: Active did not, in the agency's view, commit to meeting that standard. [00:09:15] Speaker 04: They later on found it was a deficiency, and it's uncontested that the agency didn't point it out during the course of the evaluation. [00:09:23] Speaker 04: Had they done so, [00:09:25] Speaker 04: and Active would have been able to address that deficiency and fix it. [00:09:32] Speaker 01: I'm puzzled by your client's reaction. [00:09:37] Speaker 01: The number 99.886, or whatever it was, 9886, is a very specific number. [00:09:46] Speaker 01: And you came back with another very specific number, 99.5, which was lower. [00:09:51] Speaker 01: It was outside of the qualifying range. [00:09:55] Speaker 01: I don't know what it is that the agency could have done more than saying your first proposal was not qualifying on this score, since it wasn't a matter of judgment. [00:10:11] Speaker 01: It was just a matter of numbers. [00:10:12] Speaker 01: Your number was lower than the required minimum, right? [00:10:15] Speaker 04: Well, you have to go back to the initial proposals that were submitted. [00:10:21] Speaker 04: It's alluded to in our briefs, and it's also in the Court of Federal Claims decision. [00:10:28] Speaker 04: But what ACTIV was doing is it was addressing on one hand what it called the standard, which it was aiming for 100%. [00:10:37] Speaker 04: On the other hand, it was addressing what it called an AQL, acceptable quality level, and it had a lower number in there. [00:10:44] Speaker 04: The AQL is important because that's where [00:10:48] Speaker 04: penalties will kick in under the solicitation evaluation plan. [00:10:52] Speaker 04: So that's where ACTIV had its proposal in a confusing presentation. [00:11:00] Speaker 04: And certainly, it is their fault. [00:11:03] Speaker 04: But it was clear from the start that the agency looked at that and said, we don't have a firm commitment to that system uptime requirement. [00:11:15] Speaker 04: And they didn't bring it forward to ACTIV. [00:11:18] Speaker 04: When they had questions about system uptime compliance, they raised them specifically with other offers. [00:11:30] Speaker 04: They asked who's Alan Hamilton. [00:11:33] Speaker 04: We refer to him as BAH here. [00:11:36] Speaker 04: They asked them with respect to their uptime commitment, is this an SLA, a service level agreement? [00:11:45] Speaker 04: Is this something you're actually proposing? [00:11:48] Speaker 04: We don't see where SLA appears in the RFP, at least in the core of the RFP, but the agency was looking to BAH to confirm what you're really offering us for uptime, and BAH did. [00:12:01] Speaker 04: There was another offer where they said to... You're into your rebuttal time. [00:12:05] Speaker 03: You can continue if you wish and use that, or you can reserve the time. [00:12:09] Speaker 04: I'll continue briefly. [00:12:10] Speaker 04: There was another evaluation offer that received two evaluation notices on there. [00:12:16] Speaker 04: And one of them, they asked them very specifically, what exactly are you committing to in an SLA for uptime? [00:12:25] Speaker 04: And they were able to answer that question and alleviate that. [00:12:29] Speaker 04: So that's what our concern is with that area. [00:12:33] Speaker 04: The Court of Federal Claims reading on why that wasn't an error is probably the most disturbing part of the decision. [00:12:43] Speaker 04: They found that agencies didn't have to advise offers of deficiencies or weaknesses if the deficiency or weakness was attributable to something that had been clearly stated in the RFP or solicitation. [00:12:58] Speaker 04: And that's just completely inconsistent, not only with the exact language of the federal acquisition regulation, but also decades of case precedents interpreting that. [00:13:08] Speaker 04: It was just a plain mistake. [00:13:12] Speaker 04: Beyond that, we've briefed it. [00:13:16] Speaker 04: We believe that there are multiple areas where the agency engaged in treatment that was disparate between active and other offers. [00:13:27] Speaker 04: We believe that that type of unequal type of treatment eventually rolls up to a situation where the procurement has to be reopened and people be given a fair chance to compete on an equal playing field. [00:13:43] Speaker 04: I'll go ahead and show you this one. [00:13:45] Speaker 03: OK, thank you. [00:13:53] Speaker 03: Councillor Freeland, you've got 10 minutes. [00:13:57] Speaker 00: Yes, Your Honor. [00:13:58] Speaker 00: On behalf of the United States, we believe that the Court of Federal Claims properly found the Forest Service Contract Award to Booz Allen Hamilton was rational reasoned and not contrary to law. [00:14:09] Speaker 00: To address some of the panel's concerns, yes. [00:14:13] Speaker 00: Active network is only challenging factor one. [00:14:15] Speaker 00: That means that regardless of the outcome of this appeal, Booz Allen's far superior ratings under factors two and factors three were they received an outstanding under both and relative to active networks. [00:14:28] Speaker 03: So if we were to remand this and the agency found in favor of the appellant, the appellant basically was still loose. [00:14:36] Speaker 03: Is that correct? [00:14:37] Speaker 00: Yes. [00:14:37] Speaker 00: The appellant has not brought forth enough grievances [00:14:42] Speaker 00: under enough factors to ultimately change the rating, which is why the trial court correctly found that there was no prejudice even if with respect to the two issues Judge Wheeler identified. [00:14:54] Speaker 03: How is the rating achieved by weighing out the four different sections of the solicitation? [00:15:00] Speaker 00: So the first three factors, factor one, technical, factor two, the in-person presentation, and factor three, past performance, were each individually rated [00:15:11] Speaker 00: and weighted separately, and then went together were more important than price. [00:15:18] Speaker 00: However, as the degree of technical differences between the entities narrows, then price becomes more important. [00:15:25] Speaker 00: In this instance, Booz Allen's proposal, as the source selection evaluation team found, was so vastly superior, and Booz Allen had the lowest price, that then there was no reason to engage in what they call best value trade-off to determine if somebody else is better. [00:15:40] Speaker 00: The SSET team, the evaluation team who evaluated the proposal back at the agency, found that Blues Allen had 88 strengths, no weaknesses, and no deficiencies. [00:15:51] Speaker 00: In stark contrast, Active Network, our protester, had only 24 strengths, seven weaknesses, and three deficiencies. [00:16:04] Speaker 00: So if we then go to the grievances that Active Network has brought forth on appeal, [00:16:10] Speaker 00: Even under factor one, in certain instances, it challenges, it got a, say, deficiency for two reasons. [00:16:18] Speaker 00: It's only challenging one of those reasons before this court. [00:16:21] Speaker 00: So even if this court were to find that that one reason for challenging a deficiency represents a procurement defect, there's still an unchallenged reason for the deficiency that active network isn't challenging. [00:16:33] Speaker 00: So the deficiency would still stand. [00:16:36] Speaker 01: Could you address the [00:16:38] Speaker 01: the issue of the uptime percentage and the discussion question that Mr. Marcotte discussed with the court? [00:16:49] Speaker 00: Yes. [00:16:50] Speaker 00: So from the government's perspective and the agency's, the problem was not with, in the uptime commitment context, the problem was not with discussions. [00:16:58] Speaker 00: It was with active networks' ultimate failure to provide an uptime commitment that was consistent with the plain language of the RFP. [00:17:07] Speaker 00: proposal stage, Active Network failed to commit to any uptime. [00:17:12] Speaker 00: So there's a clear requirement in the RFP for 99.986%. [00:17:17] Speaker 00: Active Network says in its initial proposal, well, in the past, we performed at 100%. [00:17:21] Speaker 00: And we'll take monetary sanctions in the future for 99.5%, I believe. [00:17:27] Speaker 00: But they didn't actually say, well, in the past, we performed for 100%. [00:17:31] Speaker 00: They didn't make any commitment for the future performance. [00:17:34] Speaker 00: And so that failure to make a commitment at the initial stage [00:17:38] Speaker 00: was one of the many vague and nebulous statements that the agency faulted Active Network for in its evaluation notices. [00:17:46] Speaker 01: But what exactly in the evaluation by the agency did the agency say about the failure to recite the 99.986%? [00:17:59] Speaker 01: What I'm trying to get at is did what the agency do [00:18:03] Speaker 01: with respect to that fact, that omitted representation in the response, constitute discussions, and why? [00:18:13] Speaker 00: Yes, Your Honor, we would submit it did constitute discussions. [00:18:15] Speaker 00: There is not, well, let me take a step back. [00:18:20] Speaker 00: In discussions, the agency gave Active Network 118 evaluation notices. [00:18:24] Speaker 00: That's relative to the 55 evaluation notices that Booz Allen's proposal received. [00:18:30] Speaker 00: Okay, active networks proposal, as the agency found, was so vague. [00:18:35] Speaker 00: Well, I understand. [00:18:36] Speaker 01: I understand your general argument to that. [00:18:37] Speaker 01: But I'm trying to get to the specific, the extent to which the agency specifically responded to the uptime commitment. [00:18:46] Speaker 01: Did the agency say, you haven't put in anything, any specific commitment, you have to put in a commitment to 99.98886? [00:18:57] Speaker 00: No, it did not. [00:18:59] Speaker 00: There is no evaluation. [00:18:59] Speaker 01: What did they do that, in your view, constituted substantial compliance with the discussion requirement on that precise issue? [00:19:06] Speaker 00: On that precise issue. [00:19:07] Speaker 00: So there is no mention on that precise issue in any of the evaluation notices. [00:19:13] Speaker 00: There is, however, in evaluation notice 101, and that's at appendix 13762, the more general and overarching comment and explicit direction from the agency that their proposal was to vague [00:19:26] Speaker 00: to nebulous reading from that evaluation notice. [00:19:31] Speaker 00: The active network proposal contains a substantial amount of vague language throughout which obfuscates your specific approach to satisfying all the requirements defined in the RFP. [00:19:40] Speaker 00: They then went on. [00:19:41] Speaker 00: The proposal extracts are just some of the many examples of the nebulous language. [00:19:45] Speaker 00: And they gave about a page worth of examples. [00:19:48] Speaker 00: Now, none of those examples were specifically the uptime commitment. [00:19:52] Speaker 00: But they say this is not an exhaustive list, right? [00:19:54] Speaker 00: Then they go on to say, uses of the phrases emphasized above in the examples and countless similar phrases throughout the proposal make it impossible for the evaluation team to unequivocally understand what you are specifically proposing to develop, deliver, or provide under the resulting contract. [00:20:11] Speaker 00: And I can go on. [00:20:11] Speaker 00: There's several other comments in that regard. [00:20:14] Speaker 00: But the fact that Active Network's initial proposal was only backward-looking. [00:20:19] Speaker 00: They were the incumbent. [00:20:20] Speaker 00: They said, oh, in the past, we performed at 100%. [00:20:23] Speaker 00: but didn't make any finite commitment for future performance is exactly one of those nebulous statements that the agency was tasking active network to fix if it wanted to stay competitive in the final proposal. [00:20:37] Speaker 00: The agency goes on to say the offeror, quote, shall revise their entire proposal from cover to cover, replacing all vague language such as that the final proposal articulates a clear, unambiguous, and comprehensive approach to satisfying the requirements as defined in the RFP. [00:20:53] Speaker 00: Now, yes, there was not an EN that specifically addressed uptime. [00:20:57] Speaker 00: But we submit that this notice gave ActiveNetwork sufficient information to know that it had to go back through its proposal and compare its proposal to the RFP and make sure it [00:21:10] Speaker 00: complied with requirements. [00:21:12] Speaker 00: And as a practical matter, they did do that, right? [00:21:15] Speaker 00: Active network, to the extent they're complaining before the trial court and here that they didn't have notice of their failure to comply with a plain language requirement in the RFP. [00:21:25] Speaker 00: Their conduct says otherwise. [00:21:27] Speaker 00: Between the initial proposal and the final proposal, they did in fact revise the uptime commitment to adopt an uptime commitment in the final proposal. [00:21:38] Speaker 00: So clearly they knew something needed to be fixed. [00:21:41] Speaker 00: What ultimately happened, however, is that in their final proposal, they picked a percentage that was plainly at odds with the RFP. [00:21:47] Speaker 00: But that's not the agency's fault at that point. [00:21:49] Speaker 00: That was fault for not reading a plain language requirement of the RFP, which the RFP requires of all offerors. [00:21:57] Speaker 00: They put the burden in the RFP specifically. [00:22:00] Speaker 00: They put the burden on the offeror to comply with those requirements. [00:22:03] Speaker 01: Let me ask you a question just about the state of play right now. [00:22:08] Speaker 01: Who's the incumbent contractor at this point? [00:22:11] Speaker 00: Active Network has been the incumbent contractor on the last generation contract. [00:22:15] Speaker 00: It's been about the last 10 years or so. [00:22:18] Speaker 00: They are. [00:22:19] Speaker 01: But is that, I mean, they continue to be the contractor pending the disposition of this appeal? [00:22:24] Speaker 01: Is that what the state is? [00:22:26] Speaker 00: Not exactly. [00:22:27] Speaker 00: So at the trial court level, [00:22:29] Speaker 00: the agency agreed to voluntarily stay performance of its award to Booz Allen pending the trial court's judgment. [00:22:37] Speaker 00: When the trial court entered its judgment, that stay automatically lifted, and Booz Allen began performance under the new contract. [00:22:45] Speaker 00: However, the first 15 months of this new contract is a phase in where Booz Allen is setting up the new platform and such. [00:22:53] Speaker 00: So essentially, both Booz Allen and Active Network are performing. [00:22:58] Speaker 00: I see. [00:22:58] Speaker 00: OK, thank you. [00:22:59] Speaker 00: Active Network has a bridge contract. [00:23:03] Speaker 03: OK, thank you. [00:23:06] Speaker 03: Let's hear from your colleague. [00:23:11] Speaker 03: Mr. Colle. [00:23:14] Speaker 02: Good morning, and please the court. [00:23:17] Speaker 02: Judge Raina's first question has disrupted things for me because you went right to the top of my outline. [00:23:22] Speaker 02: I really do want to address the first. [00:23:24] Speaker 03: We can save the time, then. [00:23:25] Speaker 02: Well, I just want to elaborate a moment on that if I have that indulgence. [00:23:29] Speaker 02: The first question I think this court has to resolve is whether or not this appeal should even be allowed to go forward. [00:23:37] Speaker 02: If you look at teachings of cases like Labatt and common systems, standing is determined in part based on prejudice. [00:23:44] Speaker 02: And Judge Range is exactly correct. [00:23:45] Speaker 02: There were four factors that were looked at, one of which was price and the other which were equally weighted. [00:23:52] Speaker 02: All of Active's objections relate only to factor one. [00:23:56] Speaker 02: This isn't [00:23:57] Speaker 02: You use the word best value like it's some sort of nebulous term. [00:24:01] Speaker 02: All that best value means is that the non-price considerations get traded off against the price considerations. [00:24:07] Speaker 01: Analytically, is there any difference between what we would do by way of investigating whether this is a standing problem as opposed to a merits problem turning on prejudice? [00:24:21] Speaker 02: Analytically, you would come to the same prejudice analysis. [00:24:23] Speaker 02: That would be correct. [00:24:24] Speaker 01: It would be identical analysis, right? [00:24:27] Speaker 01: Yes. [00:24:27] Speaker 02: But the outcome may be different in the sense that once you've reviewed the merits of whether there was a flaw in the evaluation or a flaw in the problem, then you might decide that there was something wrong. [00:24:38] Speaker 02: And at that point, even though they had standing, decide that there was not enough prejudice to result in a need to go back and correct the problem. [00:24:46] Speaker 02: The prejudice analysis that you do at the beginning is the front gate. [00:24:49] Speaker 02: Do you get in? [00:24:50] Speaker 02: Do you know already without having even thought about the merits? [00:24:53] Speaker 02: And we know based on what Active has told us in their brief. [00:24:57] Speaker 02: At the end of their brief, they gave us a nice table and said, here's what we think would be the outcome if we win across the board. [00:25:03] Speaker 02: If they win across the board, they're tied on one factor. [00:25:08] Speaker 02: Booz Allen still wins on factors two and three. [00:25:10] Speaker 02: Those are the non-price considerations. [00:25:13] Speaker 02: You don't have to do a trade-off with price. [00:25:15] Speaker 02: Booz Allen is also low price. [00:25:17] Speaker 02: This case is over. [00:25:18] Speaker 02: They have an obligation to achieve standing in this court or in the court of federal claims to show that there's a substantial chance that they're going to win the award if they prevail. [00:25:28] Speaker 02: What they've told you in their brief is, we don't have any chance of prevailing if we win everything. [00:25:33] Speaker 02: That's a standing issue, and you can resolve this case. [00:25:35] Speaker 02: This is positive. [00:25:36] Speaker 02: We're done. [00:25:37] Speaker 02: We don't have to worry about all the other issues. [00:25:39] Speaker 02: Let me turn to a moment, though, about the discussions question. [00:25:44] Speaker 02: Draw your attention to one other aspect of the discussions. [00:25:46] Speaker 02: It's on page 15 of Booz Allen's brief. [00:25:50] Speaker 02: There were some very specific statements, not about the specific percentage, but about the specific problem. [00:25:57] Speaker 02: Discussions in the government contract realm is a pretty well-known term of art. [00:26:02] Speaker 02: Agencies aren't required, the classic language is, to spoon feed the offeror about what to fix in their proposal. [00:26:09] Speaker 02: They need to flag an area of concern. [00:26:11] Speaker 02: And there's a lot of cases, and they're all cited in the briefs about that. [00:26:14] Speaker 02: There's no obligation to go back and engage in multiple rounds of discussions. [00:26:18] Speaker 02: So what the agency did here was flag an area where Active had problems in his proposal multiple times. [00:26:25] Speaker 02: Multiple times, they relied on their historic performance rather than making a commitment to the future. [00:26:31] Speaker 02: And quoting the language that we've got on page 15, the agency, during the discussions with Active, told them, the proposal you originally submitted was very much [00:26:41] Speaker 02: This is what we've done in the past. [00:26:42] Speaker 02: It was hard for us to tell from that what you were going to do in the future. [00:26:47] Speaker 02: So that's the biggest thing. [00:26:48] Speaker 02: Show us what it's going to be like in the next contract, not the last contract. [00:26:52] Speaker 02: With that advice, Active went forward in its next proposal and made an addition about this system uptime that hadn't appeared in their initial proposal. [00:27:02] Speaker 02: What did it add? [00:27:03] Speaker 02: It added a specific commitment to what they were going to do in the future, the percentage that they were going to commit to. [00:27:10] Speaker 02: The specific commitment that they made was not compliant with what was required. [00:27:15] Speaker 02: The problem here was not that the agency had not given them sufficient discussions or sufficiently alerted them to the problem. [00:27:21] Speaker 02: The problem was with how active responded. [00:27:24] Speaker 02: So they had plenty of discussions. [00:27:25] Speaker 02: They just screwed it up. [00:27:26] Speaker 02: And they had the deficiency. [00:27:33] Speaker 02: You know what? [00:27:33] Speaker 02: If there aren't any further questions, I'm going to stop right there. [00:27:35] Speaker 02: OK, no questions. [00:27:36] Speaker 02: Thank you. [00:27:42] Speaker 03: I think you have a little under five minutes. [00:27:49] Speaker 04: With respect to the discussions issue, all active is looking for is to being treated in accordance with what the federal acquisition regulation requires, which is if there's something deficient about the proposal, tell us what it is. [00:28:04] Speaker 04: Had it been clearly communicated, they would have had a chance to make it up. [00:28:07] Speaker 04: They wouldn't have made any mistakes on their next submission. [00:28:10] Speaker 04: They didn't get that advice. [00:28:11] Speaker 04: The other thing that's supposed to happen is people are supposed to be treated fairly. [00:28:15] Speaker 04: And there's evidence very clearly in the record where other offers that had some type of confusion around what they were proposing with respect to uptime got very clear questions and were able to resolve them. [00:28:30] Speaker 04: So we think that issue is very, very clear. [00:28:32] Speaker 03: Can you respond to the standing argument that was just made? [00:28:35] Speaker 04: Yes, I was just going to get to that. [00:28:38] Speaker 04: So standing and bid protests has a dual place. [00:28:44] Speaker 04: First, the court looks at it to see when you're going in, were you an actual offer or would you have some chance of getting an award? [00:28:52] Speaker 04: And that's pretty liberal. [00:28:55] Speaker 04: And then their standing comes back at the end. [00:28:56] Speaker 04: But I would agree that it's merit-based. [00:28:59] Speaker 04: I think that if we succeed on all of our claims, [00:29:04] Speaker 04: It's very clear that we would have standing and be entitled to compete for the contract and whatever happens next, whether it's a reevaluation or reopening. [00:29:17] Speaker 04: This court has been very clear that a protester doesn't have to show that, but for the alleged errors that it would have received the contract, that's not necessary. [00:29:29] Speaker 04: It needs to show that it would have been [00:29:31] Speaker 04: zone of active consideration with a substantial chance for award, which this court has also interpreted as being not an insubstantial chance of award. [00:29:41] Speaker 04: So it never has to be precise that you need to show that you were going to win. [00:29:47] Speaker 04: And if you look at the nature of the errors, that plays into it as well. [00:29:53] Speaker 04: In the case of errors with the discussions process, the remedy is to allow people to get another chance to resolve that issue. [00:30:00] Speaker 04: the agency has to reopen discussions. [00:30:03] Speaker 04: And a lot can happen in a reopening discussions, because they can submit a completely new proposal, as it would be allowed, unless there was some restriction on it. [00:30:14] Speaker 04: And then the other part is that a lot of the allegations were made. [00:30:19] Speaker 01: On that last point that you made, let me see if I understand you. [00:30:23] Speaker 01: Supposing we should say, well, the discussions with respect to the uptime commitment were flawed, but not. [00:30:30] Speaker 01: No other flaws. [00:30:32] Speaker 01: Are you saying that the contractor would be entitled to submit a completely new proposal on all issues, or just a proposal limited to the uptime commitment? [00:30:46] Speaker 04: So if a rule was that narrow, I would say the agency would probably have discretion to limit discussions to that particular issue. [00:30:56] Speaker 04: But in general, absent some restrictions, [00:30:58] Speaker 04: When you're asked to submit a new proposal with discussions, you can do it. [00:31:05] Speaker 04: The other thing that needs to be taken into consideration is the nature of the arguments that Active has been making. [00:31:11] Speaker 04: As the courts are aware, arbitrary capricious action is one reason for sustaining a protest. [00:31:20] Speaker 04: The other is a clearly prejudicial violation of law and regulation. [00:31:25] Speaker 04: Many of the arguments that we're raising fall squarely within the arbitrary treatment area, where we're arguing that there is unequal evaluations, where the agency is giving credit for one thing to an offer and not giving credit to another. [00:31:39] Speaker 04: That's the type of issue where the requirement for a standing is much relaxed. [00:31:46] Speaker 04: We point to the court's attention to the Cadell construction case that we've cited in our brief at page 49. [00:31:55] Speaker 04: It's a Judge Williams authored Court of Federal Claims decision that goes in great detail with how standing applies using the cases that have come out of this court. [00:32:08] Speaker 04: The conclusion there is that when you have arbitrary capricious action, there may not be any requirement to show prejudice. [00:32:17] Speaker 04: Or if there is, it certainly comes out to be a reduced one. [00:32:21] Speaker 04: And that's where we think we are with respect to standing. [00:32:24] Speaker 04: We think if we win on merits, we think standing is very clear. [00:32:30] Speaker 03: I'll end here. [00:32:31] Speaker 03: Thank you. [00:32:32] Speaker 03: We thank the party for the argument.